Congress passed the Violence Against Women Act (VAWA) in 1994, which contains a provision for an abused spouse or child of a U.S. citizen or lawful permanent resident to self petition for him or herself rather than rely on the abusive spouse or parent to submit a visa petition on the applicant's behalf. The policy behind VAWA is to provide qualifying survivors of domestic violence a path to escape violence and obtain legal status in the United States.
What forms of abuse qualify for VAWA benefits?
The standard under VAWA is “battery or extreme cruelty," which can take different forms, including physical violence or threat of violence, forceful detention, physical or mental injury, or immigration sabotage. Furthermore, acts or threatened acts may demonstrate an overall pattern of battery or extreme cruelty.
Three separate immigration benefits exist under VAWA:
1) The VAWA self-petitioning process is available to a foreign national who has been the victim of abuse by his or her (a) U.S. citizen or permanent resident spouse (or if that spouse has abused the foreign national’s child); (b) U.S. citizen or resident parent (or step-parent); or (c) adult U.S. citizen child. In addition to proving battery or extreme cruelty, a self-petitioner must also demonstrate the relationship to the abuser, residence with the abuser, and a good faith marriage (if based on abusive spouse).
2) A battered spouse or child waiver is available to conditional residents if he or she has been the victim of battery or extreme cruelty.
3) VAWA Cancellation of Removal is available to a foreign national in removal proceedings who can demonstrate battery or extreme cruelty by a U.S. citizen or resident spouse or parent, three years physical presence in the United States, good moral character, and extreme hardship.
What is the VAWA petitioning process?
A VAWA self-petition is filed with the U.S. Citizenship and Immigration Service (USCIS). If the VAWA self-petition is approved, the applicant may apply for adjustment of status to that of a lawful permanent resident if the abuser was a U.S. citizen at the time of approval. If the abuser is not a U.S. citizen at the time of approval, adjustment of status may not be immediately available, requiring the VAWA applicant to wait for a visa number to become available. A VAWA approved applicant may obtain deferred action and employment authorization until a visa becomes available. The self-petitioning process also allows for derivative benefits to qualified family members.
The battered spouse or child waiver (Form I-751) is also filed with USCIS. An approval results in the removal of conditions on residency and the granting of permanent resident status in the United States (as opposed to conditional resident status).
VAWA Cancellation of Removal is a form of relief before the Executive Office for Immigration Review. A grant of VAWA Cancellation results in lawful permanent resident status in the U.S. Successful cases also result in benefits to qualified derivative children.
The requirements and procedure for VAWA benefits can be complicated and requires careful assessment. Wilson Law Group has successfully assisted numerous individuals in the United States with VAWA-related applications. We are happy to schedule a consult to discuss this option and your particular situation with you.